SECURE F–35 Exports Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1182 To ensure that sales, exports, or transfers of F–35 aircraft do not compromise the qualitative military edge of the United States or Israel, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 15, 2021 Mr. MENENDEZ (for himself and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations A BILL To ensure that sales, exports, or transfers of F–35 aircraft do not compromise the qualitative military edge of the United States or Israel, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Israel and United 4 States Security Enhancement for F–35 Exports Act of 5 2021’’ or the ‘‘SECURE F–35 Exports Act of 2021’’. 6 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 1182 IS SEC. 2. ASSESSMENT OF ISRAEL’S QUANTITATIVE MILI- 1 TARY DISADVANTAGE. 2 (a) IN GENERAL.—Section 201(a) of the Naval Ves- 3 sel Transfer Act of 2008 (Public Law 110–429; 22 U.S.C. 4 2776 note) is amended— 5 (1) by inserting ‘‘, and does not suffer a quan- 6 titative military disadvantage from,’’ after ‘‘quali- 7 tative military edge over’’; and 8 (2) by adding at the end the following new sub- 9 section: 10 ‘‘(f) PUBLIC DISCLOSURE.—The report required 11 under subsection (c) shall be unclassified, without 12 redactions, and public to the maximum extent possible, 13 but may also include a classified annex without 14 redactions.’’. 15 (b) ASSESSMENTS.— 16 (1) INITIAL ASSESSMENT AND REPORT.—Not 17 later than 60 days after the date of the enactment 18 of this Act, the President shall submit to the appro- 19 priate congressional committees a report with an as- 20 sessment of whether Israel suffers from a quan- 21 titative military disadvantage as described in section 22 201(a) of the Naval Vessel Transfer Act of 2008 23 (Public Law 110–429; 22 U.S.C. 2776 note), as 24 amended by subsection (a). The report shall be un- 25 classified, without redactions and public to the max- 26 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 1182 IS imum extent possible, but may also include a classi- 1 fied annex without redactions. 2 (2) SUBSEQUENT ASSESSMENTS AND RE- 3 PORTS.—The President shall direct subsequent as- 4 sessments on Israel’s quantitative military disadvan- 5 tage be performed every four years, to coincide with 6 and be included in the quadrennial assessment and 7 report required under section 201 of the Naval Ves- 8 sel Transfer Act of 2008 (Public Law 110–429; 22 9 U.S.C. 2776 note). 10 (c) PUBLIC DISCLOSURE OF CERTIFICATION ON 11 SALE OF F–35 TO UAE.—The President shall publicly 12 disclose, to the maximum extent possible, the certification 13 required under section 36(h) of the Arms Export Control 14 Act (22 U.S.C. 2776(h)) relating to any sale, export, or 15 transfer of F–35 aircraft and associated defense articles 16 and defense services to the United Arab Emirates. 17 SEC. 3. ASSESSMENT OF THREAT AGAINST UNITED STATES 18 QUALITATIVE MILITARY EDGE INHERENT IN 19 EXPORT OF F–35 AND SUCCESSOR COMBAT 20 AIRCRAFT. 21 (a) REQUIREMENT FOR REPORT AND ASSESS- 22 MENT.— 23 (1) IN GENERAL.—Not later than 15 days be- 24 fore a proposed sale, export, or transfer to a foreign 25 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 1182 IS country (other than a member state of the North At- 1 lantic Treaty Organization, Australia, Israel, Japan, 2 Republic of Korea, or New Zealand) of F–35 air- 3 craft (including any variant or successor combat air- 4 craft) is submitted to Congress pursuant to the re- 5 quirements of section 36 of the Arms Export Con- 6 trol Act (22 U.S.C. 2776), the President shall sub- 7 mit to the appropriate congressional committees a 8 report with an assessment of the risks presented by 9 such sale, export, or transfer to the security of the 10 United States, including the critical military and 11 technological military advantage such aircraft pro- 12 vide to the United States Armed Forces. 13 (2) ELEMENTS.—The assessment required 14 under paragraph (1) shall include— 15 (A) a comprehensive overview of the poten- 16 tial compromise of United States military tech- 17 nology used in F–35 aircraft by potential for- 18 eign intelligence activities, including— 19 (i) the presence in the country of for- 20 eign intelligence personnel from countries 21 hostile to the United States, or which the 22 President considers to be a risk to the se- 23 curity of the United States, and their ac- 24 tivities; and 25 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 1182 IS (ii) the willingness and capability of 1 the country to disrupt and constrain those 2 activities, with particular consideration to 3 their potential effectiveness in preventing 4 the compromise of sensitive information of 5 F–35 aircraft; 6 (B) a description of the protective meas- 7 ures that will be taken to safeguard against 8 such compromise; and 9 (C) a description of the counter-measures 10 that could be taken should such compromise 11 occur. 12 (b) CERTIFICATION.—Not later than 15 days before 13 a proposed sale, export, or transfer described under sub- 14 section (a)(1), the President shall submit to the Com- 15 mittee on Foreign Relations of the Senate and the Com- 16 mittee on Foreign Affairs of the House of Representatives 17 a certification that such sale, export, or transfer does not 18 present a significant danger of compromising the critical 19 military and technological military advantage such aircraft 20 provide to the United States Armed Forces. 21 (c) FORM.—The assessment and certification re- 22 quired under this section shall be unclassified, without 23 redactions and public to the maximum extent possible, but 24 may also include a classified annex without redactions. 25 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 1182 IS SEC. 4. CERTIFICATIONS RELATED TO SALE OF F–35 AIR- 1 CRAFT TO COUNTRIES IN THE MIDDLE EAST. 2 (a) CERTIFICATIONS BEFORE SALE.—Not later than 3 30 days before concluding a Letter of Offer and Accept- 4 ance (or corresponding agreement or contract) for the sale 5 of, or concluding a contract for the manufacture of, F– 6 35 aircraft to be transferred to any country in the Middle 7 East other than Israel, the President shall submit to the 8 Committee on Foreign Relations of the Senate and the 9 Committee on Foreign Affairs of the House of Representa- 10 tives a certification, together with a report providing a de- 11 tailed justification therefor, that— 12 (1) the transfer of F–35 aircraft to the recipi- 13 ent country will not compromise or undermine 14 Israel’s qualitative military edge, as defined in sec- 15 tion 36(h) of the Arms Export Control Act (22 16 U.S.C. 2776(h)); 17 (2) the recipient country has provided specific, 18 reliable, and verifiable assurances to the United 19 States that it will not use these aircraft in activities 20 or operations inimical to the security of Israel, or to 21 the foreign policy and national security interests of 22 the United States, including that the recipient coun- 23 try will— 24 (A) not utilize them against allies and 25 partners of the United States; 26 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 1182 IS (B) not transfer or share any component 1 technology of the F–35 aircraft to any third 2 party or third country; and 3 (C) ensure sufficient security against hos- 4 tile technical collection efforts against the air- 5 craft that could compromise militarily-signifi- 6 cant or otherwise sensitive information; 7 (3) the recipient country has provided specific, 8 reliable, and verifiable assurances to the United 9 States that it will not use these aircraft to commit, 10 or enable the commission of, a violation of inter- 11 national humanitarian law or internationally recog- 12 nized human rights; 13 (4) if the recipient country violates such assur- 14 ances, the United States will have the means to ad- 15 dress and ameliorate these violations to reduce the 16 impact on the security of Israel or on the foreign 17 policy and national security interests of the United 18 States, including a listing of such means; and 19 (5) the United States will require technology se- 20 curity measures on the delivery, operation, storage, 21 and servicing of such aircraft sufficient to signifi- 22 cantly reduce the danger of compromise of the mili- 23 tary technology. 24 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 1182 IS (b) CERTIFICATIONS BEFORE DELIVERY.—No deliv- 1 ery of any F–35 aircraft to any country in the Middle East 2 other than Israel shall occur until 45 days after the Presi- 3 dent has submitted to the Committee on Foreign Relations 4 of the Senate and the Committee on Foreign Affairs of 5 the House of Representatives a certification, together with 6 a report providing a detailed justification therefor, that— 7 (1) the transfer of F–35 aircraft will not com- 8 promise or undermine Israel’s qualitative military 9 edge, as defined in section 36(2) of the Arms Export 10 Control Act; 11 (2) the United States has instituted technology 12 security measures on the delivery, operation, storage, 13 and servicing of such aircraft sufficient to signifi- 14 cantly reduce the danger of compromise of the mili- 15 tary; 16 (3) such country has not, since the Letter of 17 Offer and Acceptance (or corresponding agreement 18 or contract) for such aircraft was concluded, en- 19 gaged in military, paramilitary, or intelligence oper- 20 ations inimical to the security of Israel or to the for- 21 eign policy and national security interests of the 22 United States, including— 23 (A) transferring any United States-origin 24 equipment, directly or indirectly, to a United 25 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 1182 IS States-designated terrorist organization or to 1 adversaries of Israel or the United States; 2 (B) providing weapons, directly or indi- 3 rectly, from any source country, including 4 China, to armed militias fighting against part- 5 ners and allies of the United States; 6 (C) conducting surveillance on any private 7 United States citizen; or 8 (D) committing, or enabling the commis- 9 sion of, a violation of international humani- 10 tarian law or internationally recognized human 11 rights; and 12 (4) the recipient country has not purchased or 13 otherwise acquired foreign technology, equipment, or 14 defense articles or services, including from the Rus- 15 sian Federation or the People’s Republic of China, 16 and has provided written assurances that it will not 17 purchase or otherwise acquire foreign technology 18 equipment, defense articles, or defense services that 19 could be used to compromise the technology of such 20 aircraft and put United States troops or military 21 strategies at risk, unless such technology is also sub- 22 ject to monitoring by United States personnel. 23 (c) SUBSEQUENT CERTIFICATIONS.—The President 24 shall, not later than 180 days after the date on which the 25 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 1182 IS first F–35 combat aircraft transferred to a country in the 1 Middle East other than Israel arrives in its territory, and 2 annually thereafter for 10 years, certify to the appropriate 3 committees of Congress that— 4 (1) the transfer of F–35 aircraft to such coun- 5 try has not compromised or undermined Israel’s 6 qualitative military edge, as defined in section 7 36(h)(3) of the Arms Export Control Act (22 U.S.C. 8 2776(h)(3)); 9 (2) the United States continues to institute 10 technology security measures on the delivery, oper- 11 ation, storage, and servicing of such aircraft suffi- 12 cient to significantly reduce the danger of com- 13 promise of the military technology of such aircraft; 14 (3) such country has not engaged in military, 15 paramilitary, or intelligence operations inimical to 16 the security of Israel or to the foreign policy and na- 17 tional security interests of the United States within 18 the prior year as outlined in subparagraphs (A) 19 through (C) of subsection (b)(3); and 20 (4) such country has not committed, or enabled 21 the commission of, a violation of international hu- 22 manitarian law or internationally recognized human 23 rights. 24 VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 1182 IS (d) FORM.—The certifications and justifications sub- 1 mitted under this section shall be unclassified, without 2 redactions and public to the maximum extent possible, but 3 may also include a classified annex without redactions. 4 SEC. 5. APPROPRIATE CONGRESSIONAL COMMITTEES DE- 5 FINED. 6 In this Act, the term ‘‘appropriate congressional com- 7 mittees’’ means— 8 (1) the Committee on Foreign Relations, the 9 Committee on Armed Services, and the Committee 10 on Appropriations of the Senate; and 11 (2) the Committee on Foreign Affairs, the 12 Committee on Armed Services, and the Committee 13 on Appropriations of the House of Representatives. 14 Æ VerDate Sep 11 2014 04:32 Apr 28, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S1182.IS S1182 pbinns on DSKJLVW7X2PROD with BILLS